OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

Despite the language of the CRA that clearly includes guidance documents as rules subject to its provisions, many, if not most, agencies did not send guidance documents to the House and Senate as the CRA required. The Government Accountability Office opined in 2017 that guidance documents were subject to the CRA, and at least two district courts have entertained suits claiming that an agency violated the CRA by not submitting guidance documents to Congress. The new OMB memo specifically notes that guidance documents are subject to CRA requirements.

More significant, however, is OMB’s new interpretation of its role under the CRA regarding independent regulatory agencies. The CRA distinguishes between “major rules” and other rules. Both types are subject to CRA disapproval, but rules that are not major may go into effect as otherwise provided by law, while major rules may not go into effect for 60 days. Major rules under the CRA are those that are likely to result in (A) an annual effect on the economy of $100,000,000 or more; (B) a major increase in costs or prices for consumers, individual industries, federal, state, or local government agencies, or geographic regions; or (C) significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.